Safeguarding and social media use

However, the line between personal and public use of social media can quickly become blurred and this can mean trouble for businesses if a member of staff posts contentious, inflammatory or derogatory comments online and can be linked to their employer. A company’s reputation is a valuable thing and it can be very quickly damaged if employees misbehave online.

So what can employers do to safeguard their business in the event that social media turns anti-social?

The social media policy

This is very important and will let employees know what’s expected of them when using social media.

Employers should:

  • work in co-operation with the recognised trade union (if there is one) or staff representatives to ensure that all concerns and viewpoints are recognised;
  • put the focus on ensuring employees are protected from online bullying and safeguarding the reputation of the company. Don’t make it about proscribing what employees can say – that runs the risk of the social media policy becoming a free speech issue, which can be emotive and very difficult (and costly) for employers to navigate;
  • make it clear what social media activity is acceptable and what should be avoided;
  • set out in detail what an employee can expect to happen if they use social media in breach of the policy;
  • recognise that employees who use social media on behalf of the company know what to do and how to do it; clear boundaries should be established and understood.

An additional point to be aware of: social media is a constantly evolving sector and therefore, the social media policy needs to be reviewed and updated on a regular basis; at least annually, if not more often.

Restricting access to social media

Limited and reasonable use of social media during work time is often permitted in a social media policy, but as a safeguard, blocking employees from using social media on company devices might be a good idea.

If limited use is allowed, then clear boundaries need to be set out in the policy so that employees know what they are allowed to do, and breaches can be clearly defined.

Keeping track of social media use on work equipment can be facilitated by using monitoring software, but before doing this, employers need to remember that they should make employees aware of what’s going on.

Additionally, bear in mind that any data collected while monitoring activity must be gathered in accordance with the UK General Data Protection Regulation (GDPR) and this must be mentioned in the company’s Privacy Notice.

Business use vs private use

As we mentioned above, the line between private and business use of social media is sometimes blurred as people’s sense of identity becomes linked to that of their employer. On LinkedIn, the individual’s employer is part of their profile and therefore any activity on that platform will link back to the business.

The social media policy needs to make the boundary between the two more clearly defined. In many companies, business social media activity would be taken care of by the marketing function, but in smaller companies there may not be one, and an employee may find themselves representing the company online when they have no experience or training. The value of a clear and robust policy becomes even more apparent in situations like this.

The policy should explain the rules about what information can be disclosed and opinions that can be shared online. Additionally, the policy needs to set out the relevant legislation on copyright and public interest that need to be considered when using the organisation’s social media accounts.

Employees should be aware of:

  • when they are assumed to be acting on behalf of the company on social media;
  • what personal views they can share and what they should avoid;
  • the law surrounding defamation;
  • measures needed to safeguard the company’s brand and reputation online.

Some companies are keen to leverage their employees as “brand ambassadors”, which means they will be encouraged to reveal their links to their employer on their own social media accounts. This approach is fraught with difficulty and should be governed very carefully in the social media policy.

Other employees may avoid mentioning their employer at all on their personal accounts, but legal advice should still be taken on whether that act of distancing will avoid disciplinary action if they act in an irresponsible or unacceptable way on their personal accounts.

Social media and bullying

If the employee’s online activity is directed towards another employee and this can be construed as bullying, then that should be handled in accordance with the anti-bullying section of the staff handbook or disciplinary policy.

Social media and sexual harassment – on 26th October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force. This places a legal obligation on employers to take ‘reasonable steps’ to prevent sexual harassment of their employees. The employer can be liable for employee posts on social media if they fail to protect employees from sexual harassment.

Dismissing an employee for social media activity

When thinking about dismissing an employee for unacceptable online behaviour, the employer needs to ask the following questions:

  • Was the employee aware of company expectations regarding their use of social media?
  • Is what the employee’s done directly linked to the company?
  • If not, does it have the potential to bring the company into disrepute or harm its reputation?
  • Is what the employee has done serious enough to count as a dismissal offence?
  • Is there consistency in disciplinary action for employee personal social media activity
  • If the employee is a union member, has the union been involved in the disciplinary process?

Remember:

  • Depending on the seriousness of the offence, a single incident may be enough to justify a dismissal.
  • There is no time limit on posts. The offensive material may have been posted some while ago but can still be reason to dismiss.

If a social media policy is introduced, then the employer needs to make sure that the employees understand their obligations and duties under it; this can be done with training and getting them to confirm in writing that they have read and understood the policy. This document can be produced later as evidence if a claim arises out of disciplinary action.

What will the tribunal take into account?

When considering social media-related dismissals, tribunals will look at a number of factors, including:

  • what the comments were about;
  • how badly the reputation of the employer was damaged;
  • whether they represented a breach of confidentiality;
  • whether the employee had made the comments during work hours and on work equipment;
  • the existence of a social media policy and the degree to which employees are aware of it and have been trained on the correct use of social media;
  • other factors which could mitigate the charge.

How can we help?

As we have mentioned, a legally compliant social media policy is key to ensuring that employers can allow the use of social media while at the same time safeguarding both their business and their employees.

rradar’s expert legal advisors and solicitors have experience in drafting both policies and contracts and would be happy to guide you through the process and ensure your business is safe and compliant.